Chandigarh

DF-I

CC/699/2022

VINAY KUMAR - Complainant(s)

Versus

DR. SARABJEET SINGH - Opp.Party(s)

PARVEZ CHUGH

11 Mar 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

 

Consumer Complaint No.	:	CC/699/2022
Date of Institution	:	27.07.2022
Date of Decision	:	11.03.2024

 

1. Vinay Kumar son of Zile Singh, aged about 43 years, resident of House No.53, MDC, Sector 5, Panchkula, Haryana.
2. Pooja wife of Vinay Kumar aged about 44 years resident of House No.53, MDC, Sector 5, Panchkula, Haryana.
3. Nishq (minor) son of Vinay Kumar aged about 16 years through Vinay Kumar natural guardian, resident of House No.53, MDC, Sector 5, Panchkula, Haryana.

.......Complainants

Versus

1. Dr. Sarabjeet Singh, The Perfect Smile, Dental Clinic, SCO 85, 1^st Floor, Sector 35-C, (Inner Market), Chandigarh-160022.
2. The New India Assurance Company through its Branch Manager, SCO No.69, First Floor, Sector 32-C, Chandigarh.

     … Opposite Parties

CORAM:-      PAWANJIT SINGH PRESIDENT

               SURJEET KAUR MEMBER

               SURESH KUMAR  SARDANA MEMBER

 

ARGUED BY:- Sh.Parvez Chugh, Advocate for the complainants (through VC).

             Sh.Pradeep Bedi, alongwith Sh.Gaurav Bhardwaj, Advocate for OP No.1 alongwith Dr.Sarabjeet Singh, OP No.1 in person.

             Sh.Amit Kundra, Advocate for OP No.2.

 

Per SURESH KUMAR SARDANA, Member

          Briefly stated on 23.01.2021 the complainants consulted OP No.1 for treatment of maligned teeth in lower jaw of Complaint No.3, complainant No.1 had a deep bite issue and Complainant No.2 had a small gap in the upper arch. OP No.1 grabbed the opportunity and started advising unnecessary treatments with lots of false assurances. X-ray of the jaw for the complainants was taken on making payment of Rs.6000/- to OP No.1. It is stated that total estimate for correction/treatment of the dental issues of the Complainants was given as Rs.3 lacs by OP No.1 and an appointment was fixed for follow up on 25.01.2021. Subsequently the appointments were slated on monthly basis with part payment. OP No.1 forced the Complainants to pay even more than the estimate given by him. During the discussion/appointment for the treatment OP No.1 suggested/proposed different set of braces for the Complainants giving a logic of different timelines which is not correct but it was to extract more money from the Complainants. However, it was finalized for Speedo braces (Ceramic) with titanium wires as promised and advised by OP No.1 but OP No.1 did not stick to his words and used metal braces for OP No.3 in lower jaw (which are 50% of the cost of speedo as per OP No.1's own estimates) and after initial two sittings used normal steel wires instead of titanium. It is averred that the initial estimates of the treatment was given Rs.98,000/- to Rs.1,00,000/- for every member without any hidden costs/charges. However, later on OP No.1 started the treatment telling different stories as over more than 40% payment was made in initial two sittings (OP No.1 have taken Rs.5,000/- for record keeping and Rs.5000/- for each retainers which was never discussed), the amount of Rs.30,000/- charged extra which was neither discussed earlier nor included in part of complainants treatments, despite this, amount of Rs.3.30 lakh has been paid to OP No.1 till date. Treatment as Skeletal procedure (which  OP No.1 never clarified what it would be, despite asking time and again, however the same was included in the treatment course by  OP No.1) and implants each costing Rs.20,000/-, these procedures have not been performed by  OP No.1 till date despite already having taken the money for the same.  OP No.1 has charged the fees from the complainants without even giving due treatment and have thus provided deficient services to the complainants and they were kept in dark regarding line of treatment. OP No.1 has always been using the suction method during the treatment of the complainants and never allowed them to spit & clear out mouth, this caused irritation, inconvenience to the Complainants. On 22.02.2022 during last appointment with  OP No.1,  OP No.1 started badly shouting and behaved abruptly for more money (Rs.1 lac more) and refused to entertain the complainants further for the treatment despite receiving Rs.3.30 lacs which was more than the agreed fees.  It is stated that the complainants have not been given any treatment for implants or skeletal procedure by  OP No.1. In this way,  OP No.1 had not given proper treatment and there is deficiency in  OP No.1 service and even his behaviour has caused irreparable loss and mental trauma to the complainants. When OP No.1 refused to entertain the complainants, complainant no.3 was shown to some other dental centre where the complainants were stunned to know that he is still having a disjointed jaw, no correction has been done by  OP No.1 to correct scissor's bite on the right side, his upper/lower arch has not been coordinated. He has been advised to undergo surgical intervention (BSSRO), correction of Molar and Canine rotation as well as various other dental surgical corrections. The complainant no.3 is at such an age where he wanted to be completely medically fit including the dental structure as he is to undergo various competitive examinations including Armed Forces where he is required to be 100% medically fit but now he is under immense pain and agony as other doctors have advised him to take the remaining treatment from OP No.1 as the earlier treatment records are not available with the other doctors. However, OP No.1 has refused not only to entertain and treat the complainants any further but has also refused to share the treatment records of the complainants. The complainants no.1 and 2 do not want to put their son to any kind of risk at this stage of his life. Legal notice sent by the complainants was also not replied by OP No.1. The complainant have recently come to know that  OP No.1 had earlier also indulged in similar kind of unfair trade practice and consumer complaint was filed  against him and he was found deficient. Alleging the aforesaid act of OP No.1 is deficiency in service and unfair trade practice on his part, this complaint has been filed.

2.      The Opposite Party No.1 in his reply while admitting the factual matrix of the case stated that O.P. No.1 is qualified Orthodontic having experience of 23 years. It is stated that No.1 took the treatment for his deep bite issue; Complainant No.2 took the treatment for a small gap in the upper arch and the Complainant No.3 took the treatment for malalignment of teeth in lower jaw. The charges for the treatment of Complainant No.1 was fixed at Rs.1.30 lac, for the treatment of the Complainant No.2 the charges were fixed at Rs.1.10 lac and for the treatment of the complainant No.3 the charges were fixed at Rs.1.50 lac. It is further stated that complainants No.1 and 2 were fully satisfied with the treatment of OP No.1 and so far the treatment of the complainant No.3 is concerned, he has relied upon Annexure C-3 which is patient dental health record issued by Command Military Dental Centre (WC) in which there is a noting that Sarabjeet wanted to correct this also but actually it was not required'. But the fact is that the complainant No.3 approached the  OP NO.1 for deep bite and the concerned doctor of Command Military Dental Centre did not see the previous record and without seeing the previous history/records, it was not possible for him to give such a comment. It is averred that the document Annexure C-3 does not depict any date, signature, name of doctor, his designation and therefore the  complainants have suppressed certain material facts from this  Commission. It is stated that the documents placed on record are the photocopies and the complainants be directed to produce the original prescription. It is stated that for the case of medical negligence, the expert opinion from a Medical Board is the best evidence and the same is required for the proper adjudication of the medical negligence cases but, in the present case, there is no such expert evidence. The Complainant No.1 was explained everything in detail regarding the treatment, cost, duration, types of braces, skeletal complications and other factors after which the Complainant No.1 got ready for treatment for himself, Complainant No.2 and Complainant No.3 and consent was taken from them. The Complainant No.1 opted for speedo orthodontic technique for the treatment for which the O.P. No.1 routinely charges Rs.1.3 lacs but for the Complainant No.1 the charges were reduced to Rs.98,000/- to 1,00,000/- due to his defence background. It is stated that the O.P. No.1 has website and it is mentioned in the website about the entitlement of defence personnel to claim discount on treatment for self and his dependents. An extra amount of Rs.10,000/- was told for the Complainant No.3 for his preference for tooth coloured wires (ceramic wires) and another additional amount of Rs.20,000/- was sought for the skeletal correction and an additional amount of Rs.20,000/- for micro implants required in the treatment for the Complainant No.3 subject to its requirement at some later stage of treatment. Further along with this, ceramic wires were to be charged for additional Rs.10,000/-, if the same was opted and in total an amount of Rs.1.50 lacs was sought for the treatment of the Complainant No.3, a sum of Rs.1.30 lacs for the treatment of the Complainant No.1 and Rs.1.10 lacs for the treatment of the Complainant No.2. The Complainant No.1 was always hesitant to make payment for the treatment. During the discussion, different time frames were conveyed. For the Complainant No.3 it was 1.5 years, for the Complainant No.1 about 1.5 years and for Complainant No.3 the time frame conveyed was 6 months. These time frames were possible with Speedo Orthodontic Technique, requiring Friction free Mechanic and Lasers, thus, showing minimum durations. It is stated that with so much of crowding and complete traumatic bite, it was not possible to place large size demon braces in the lower jaw of the Complainant No.3 and therefore after informing all complainants, the O.P. No.1 placed metal braces which were of smaller size and were to be replaced later with ceramic braces (as treatment protocol required). The Complainant No.3 now challenges the treatment given by the O.P. No.1 and on the contrary it was the O.P. No.1 who had to spend an additional metal braces kit for Complainant No.3 for which the O.P. No.1 did not charge extra. The O.P. No.1 took the burden of all these extra charges of additional breakages. Complainant No.3 had come to the clinic of the O.P. No.1 with breakages multiple times and no extra charges were taken and also for other dental procedures whenever so required. The Complainant No.1 has wrongly mentioned regarding use of titanium wire. The O.P. No.1, till the end of the treatment used NI- TI and Bera titanium wires along with SS wires as and when required during treatment. The ceramic coated wire is initially used for alignment as and when required as per treatment need. The complainants were duly informed about all the procedure, treatment and protocol. Regarding additional skeletal procedures various procedures of intermaxillary elastics, bite blocks, supplementary wires, intrusion arches, piggyback wires and multiple procedures were done and shown and explained to the complainants during the course of treatment and all this showed remarkable improvements in all three of the complainants, which was appreciated by multiple times. The skeletal component has to be taken care after a doctor align and level the teeth and once a patient is in thicker stainless steel wires, and reaching to thicker wires takes time. The total time given to the Complainant No.3 was 1.5 years and after one year when the O.P. No.1 was to continue with skeletal changes, Complainant No.3 stopped coming for the appointment. The Complainant No.1 has also multiple times appreciated the changes in achieving the treatment of the Complainant No.3. The Complainant No.1 has shown Complainant No.3 to some other doctors who, without seeing pre-treatment records, has commented on the treatment. All other allegations made in the complaint has been  denied being wrong.
3.      The Opposite Party No.2  in its reply while admitting the factual matrix of the case stated that  the matter in dispute involves intricate questions of law and fact and can best be adjudicated by Civil Court of competent jurisdiction. It is stated that the medical negligence can only be imputed if the treating doctor lacked necessary skill or adopted a procedure not being followed by his fraternity and in the instant case there is hardly any ingredient which can be brought to light to impute negligence on the part of treating doctor. It is stated that insurer can only be held liable for the professional error / negligence and not for any culpable negligence committed by the doctor. A heavy burden lies upon the complainants to prove the case way of leading an expert and cogent evidences.  The complainants have failed to disclose as to how the damages have been calculated. It is submitted that in case, the insured is found negligent, the liability of OP No.2 shall be strictly governed by the coverage provided in the insurance policy read along with its terms, conditions and exceptions. The reply alongwith the documentary evidences given by OP No. 1 may also be read as part and parcel of the reply on behalf of the OP No. 2. All other allegations made in the complaint has been  denied being wrong.
4.      Rejoinder was filed and averments made in the consumer complaint were reiterated.
5.      Contesting parties led evidence by way of affidavits and documents.
6.      We have heard the learned counsel for the contesting parties and gone through the record of the case.
7.      The main grievance of the complainants is that the OP No.1 is deficient in providing service therefore the first question to be decided is whether the complainants have been able to prove their case. The Hon’ble Supreme Court of India in M.A. Biviji v. Sunita & Others (Civil Appeal No. 3975 of 2018) decided on  19 October, 2023  has held that there is a requirement of a higher burden to establish medical negligence on the part of treating doctor. The case of the complainants is entirely based upon one document (Annexure C-3) i.e. Patient Dental Heath Record, issued by some Doctor of the Command Hospital in the name of complainant no.3 only.  We have perused this document (Annexure C-3)  but did not find any patient ID No. thereon; card no.; date of issuance of this document; date and time of visit of complainant no.3 to the said hospital; clear name of the  issuing doctor. Apart from it, it is visible from even naked eyes that on document (Annexure C-3) i.e. Patient Dental Heath Record, at many places some words with different writing/ink have been inserted/masked which fact makes this document highly suspicious. During the course of proceedings and in the written reply filed by opposite party no.1, the authenticity of this document (Annexure C-3) has been doubted. During the course of proceedings, the complainants were asked to provide the originals of this document (Annexure C-3) but they failed in either doing so or to produce the affidavit of the consulting Doctor, to prove the authenticity of this document. Therefore, no reliance can be placed on the document (Annexure C-3) to come to any conclusion that opposite party no.1 was deficient in providing service or negligent while giving treatment to the complainants.
8.      Even if for the sake of arguments-the document (Annexure C-3)  is accepted to be genuine, even then it is of no help to the complainants because the opinion given by the doctor (Annexure C-3) that no treatment/correction of teeth has been given to complainant no.3 or opposite party no.1 wanted to correct the deep bite which was actually not required;  or  a deficient mandibular was present, is not backed by any record/evidence like X-Rays, OPGs, Models and photos of that day or any previous records qua the treatment given by opposite party no.1. It is very unusual as to how a doctor can come to a conclusion or give his opinion without getting any tests/X-rays etc. done. The complainants have not placed on record any evidence to prove that they ever asked for any  previous treatment record from opposite party no.1, for providing the same to any other doctor. Whereas on the other hand it has been admitted by the complainants in para no.9 of the complaint that they are not in the custody of earlier/previous treatment record of opposite party no.1. Even otherwise it is well settled law that the very nature of medical profession, skills differs from doctor to doctor and more than one alternative course of treatment are available is admissible. The Hon’ble Supreme Court in Piara Singh v. State of Punjab, (1977) 4 SCC 452  observed that where the opinion of one medical witness is contradicted by another and both experts are equally competent to form an opinion, the court will accept the opinion of that expert which supports the direct evidence in the case. However in the present case, even the report of alleged Doctor of Command hospital is highly suspicious.
9.      The next question is as to what amount the complainants were liable to pay to opposite party no.1 qua the treatment to be taken by them for their braces. In their complaint, the complainants have alleged that they were liable to make payment of Rs.1 lac each i.e. totalling Rs.3 lacs, yet, thereafter, despite the fact that an amount of Rs.3.30 lacs stood received by opposite party no.1, even then he demanded more amount.  Admittedly the complainants have paid Rs.3.30 lacs to opposite party no.1 for their respective treatments. A bare perusal of the treatment records of the complainants (Annexure C-1) reveals that complainant no.1 and 2 have taken treatment qua their braces and there is nothing on record that any complaint/dispute qua treatment of complainant no.1 or complainant no.2 has ever been raised by them. It is evidently mentioned in (Annexure C-1 at page 24) that total amount of Rs.3.90 lacs was fixed towards the treatment to be given to the complainants i.e. Rs.1.30 lacs for complainant no.1, Rs.1.10 lacs for complainant no.2 and Rs.1.50 lacs for complainant no.3. Therefore it is proved that the complainants were liable to make payment of Rs.3.90 lacs towards the treatment to be taken from opposite party no.1, against which admittedly, they have paid only an amount of Rs.3.30 lacs. Thus the contention raised by the complainants that opposite party no.1 charged extra amount from them is devoid of merit.
10.      To give strength to the case, counsel for the complainants submitted that  despite the fact that opposite party no.1 has committed to fit ceramic braces  (Speedo Orthodontics) with titanium wires in the lower jaw of complainant no.3 for which he was to charge an amount of Rs.1.50 lacs, yet he failed to fit the same and on the other hand has fitted metal braces in the lower jaw. During  arguments,  Dr.Sarabjeet/opposite party no.1 was present and when he was confronted with this submission, he  submitted that depending upon the severity of the case like deep bite, traumatic bite, at times  in the first instance, smaller metal braces are placed in the lower jaw, which  are to be replaced with larger size ceramic braces to avoid breakage, pain and damage of upper teeth which is a  normal practice adopted in these types of cases, but  complainant no.3 thereafter neither came for getting his remaining treatment done  nor has paid the remaining amount of Rs.60,000/- for the same. The complainants have failed to controvert the submissions made by Dr.Sarabjeet/opposite party no.1 in this regard.  Thus in this situation, if the jaw issue could not be corrected because complainant no.3 didn’t turn up for remaining treatment and also for making payment of remaining amount, then Dr.Sarabjeet/opposite party no.1  cannot be held deficient. Even it is the own case of the complainants that complainant no.3 was directed by other doctors to get the remaining  treatment done from Dr.Sarabjeet/opposite party no.1  but he did not go to him, under the fear  of risk at that stage. Thus, once complainant no.3 himself visited Dr.Sarabjeet/opposite party no.1 for remaining treatment and also for making payment of remaining amount, now OP No.1 cannot be blamed. Even otherwise, it is very strange that on the one hand the complainants are relying upon (Annexure C-3) to say that there is deficiency in service on the part of the opposite party no.1, whereas, in their complaint they are saying that the doctor of Command Hospital has advised him that since he did not have any old record of the complainants, therefore, complainant no.3 should go again to Dr.Sarabjeet for treatment.  The facts of the case in hand are squarely covered by the judgment of the Hon’ble National Commission in Revision Petition No. 4294 of 2007,  Dharam Bir Bhatia Vs. Dr.. Anjali Dave Tiwari and another, decided on 19.10.2016,  in which also dispute with regard to braces has been dealt with and in this case, the expert panel of three Doctors Dr. N.K. Patnaik, Principal, Mahatama Gandhi Dental College, Jaipur, Dr. A.K. Tandon, Principal, Rajasthan Dental College, Jaipur and Dr. D.K. Gupta, Professor and HOD, Government Dental College, Jaipur have specifically held that treatment for braces is a long term treatment with an average duration of 2 years, involving regular monthly visits and additional factors like increased age, impacted canine and missing appointments can prolong treatment duration. However, in the present case, after taking treatment from Dr.Sarabjeet by 22.02.2022, complainant no.3 did not wait even for one and a half month properly and issued legal notice upon him in April 2022 itself on the basis of a suspicious document (Annexure C-3).
11.      As stated above, it is settled law that the burden of establishing medical negligence on opposite party no.1 was on the complainants. Surprisingly, the complainants are seeking refund of entire amount paid including of the treatment given to complainants no.1 and 2 also despite the fact that no  dispute regarding  their treatment has ever been raised or proved in this case.  In the present case, there is nothing to show that the procedure conducted by Dr.Sarabjeet/opposite party no.1 on the complainants was outdated or poor medical practice or there was any breach of duty of care. In this case, except a suspicious document (Annexure C-3) which did not bear any patient ID, name of doctor, date and time of entry of complainant no.3 etc. and that too which contains different writings with different ink thereon, there is no other cogent and convincing evidence to prove any negligence or deficiency on the part of Dr. Sarabjeet/opposite party no.1. In Kalyani Rajan v. Indraprastha Apollo Hospital & Ors. decided on OCTOBER 17, 2023, the Hon’ble Supreme Court has held that principle of res ipsa loquitor cannot be blindly invoked to impute liability for medical negligence and it deprecated the tendency to find human fault and allege negligence against medical professionals in every instance of unsatisfactory medical treatment. In  Bombay Hospital and Medical Research Centre versus Asha Jaiswal and Others, wherein by choosing an alternative method the patient developed complications, the court held that without sufficient and conclusive evidence to impute liability on the doctor, any subsequent liability cannot be fastened upon the medical practitioner.
12.      In view of above, it is held that the complainants have failed to establish any deficiency in service or medical negligence on the part of opposite party no.1 or opposite party no.2. Resultantly, this complaint stands dismissed with no order as to cost. 
13.      Certified copies of this order be sent to the parties free of charge. The file be consigned.

 

 

Sd/-

[Pawanjit Singh]

President

 

Sd/-

[Surjeet Kaur]

Member

 

Sd/-

[Suresh Kumar Sardana]

Member

 

11/3/2024

Ls